tv Presidential Authority to Use Military Force CSPAN October 11, 2014 10:01am-11:07am EDT
>> at a time when congress was out of session, the parliament of the united kingdom authorized the air strikes. the united kingdom is not the only nation to do that. even turkey debated strikes before the united states. the constitution grants congress the exclusive power to declare war and james madison said no part of the constitution -- claude that decides the question of war, peace. with that in mind, we'll hear from jean heelly on the constitutional concerns regarding the president's
commissioned officer in the u.s. navy. with that, i'll turn it over to gene. >> thank you, john. thank you all for being here. i'm going to talk about whether what the president's doing is legal and chris is going to talk about whether it's a good idea. my task is easier. first of all, what are we doing? since early august, the president has launched a couple of hundred air strikes on either side of the iraq syria border. most against isis targets. though two weeks ago, he also throw 47 missiles at the khorizan group in syria. what are we calling what we're
doing? well, the bombing has gotten ahead of the branding. at this point we're going by the pla placeholder designation operations in iraq and syria. we're actually running out of cool names for the operations we launch. we thought about operation infinite resolve apparently. but we dropped that. and as you can see there, the journal is running a contest for name that military operation. #operationname if any of you have good ideas, get on twitter for that. what's the legal basis for this conflict to be named later? in his nationally televised address on september 10th, the president said i have the authority to carry out this,
what do you call it? where that authority was supposed to come from was anything but clear most of all it seemed to the administration itself after several weeks of various fits and starts and trial balloons, two weeks later, we got an official statement from the president in the form of a notification under the war powers resolution on september 23rdrd. he mentions several potential sources of authority there and i think we can group them into three separate rationales. the commander in chief and chief executive constitutional rationales. then he mentions two sources of potential domestic statutory authority, public law 107243 that's the 2002 iraq war
resolution and 10740 the authorization of the use of military force or aumf that congress passed three days after 9/11 to authorize the impending war in afghanistan and an ongoing war with al quaeda. let's look at all three. starting with commander in chief and chef executive. the commander in chief clause is not a particularly fruitful source of authority for launching a military operation as hamilton put it in federalist 69, this means no more than that the president will be, quote, the first general and admiral of america's military forces and generals and admirals have an important role but don't in general get to decide whether with whom and when we go to war. as far as the chief executive goes, this was the vesting clause, article 1 section 1
unitarians. because the important power of declaring war is vested in the legislature at large. hamilton writing says it is the proves and the duty of the executive to preserve to the nation the blessings of peace, the legislature alone can interrupt them by placing the nation in a state of war. madison for his part no part -- referenced this quote before.
in no part of the constitution is more wisdom to be found than in the declare war clause. he continues that were it otherwise, the trust and the temptation would be too great for any one man. so nobody thought that the president had the inherent constitutional power to launch wars of will congress be damned. but to be fair, the obama administration has not placed a great deal of emphasis on broad theories theories of presidential power in order to justify this war.
in the obama theory of constitutional war powers, congress gets a vote but it's one vote, one congress, one vote, one time. maybe two times. the president identifies two possible sources of statutory authority both over a decade old and both passed by different congresses for different wars. one of those is the iraq war resolution passed in 2002 to authorize the president to disarm saddam hussein. interestingly in a blast from the past, obama is not the first president to argue that old aumfs never die. as it happens, the bush cheney
tried a similar trick in the run up to the iraq war 12 years ago. this article from the "washington post" in august of 2002 lawyers for president bush -- permission remains enforced from the 19 # 19 to their credit i suppose they dropped that argument after about a week and a half and sought congressional authorization. but 12 years later the obama administration is arguing that the regulation that gave us gulf war two still has now have life left in it to support gulf war three. what's wrong with this argument? you start with the title. authorization for the use of military force against iraq, resolution of 2002.
iraq, the shiite-led government of iraq, is actually part of our coalition of the willing here. so this argument i think is too cute by half. and what's more on july 25th, two weeks before the president started bombing isis targets in iraq, president obama's national security advisor told speaker boehner -- unnamed senior administration official arguing that, quote, the 2002 iraq aumf would serve as an alternative statutory authority basis on which the president may rely for military action in iraq. even so, our position on the 2002 aumf hasn't changed and we'd like to see it repealed.
isis certainly wasn't around to plan or aid the 9/11 attacks and it's difficult to see how they are quote, unquote harboring an organization that excommunicated them. are they supposed to be a so-called associated force of a group that refuses to associate with them own is the administration's legal theory that the torch has been passed to a new generation and isis is the proper successor to al
quaeda under the aumf. well, by the way, it doesn't really matter as far as the administration sees it they're covered. all of which i think leads us to a larger problem, something that it is long past time that congress grappled with. now, barack obama, it's true, is hardly the first president to wage war without congressional authorization, but for the bulk of the 20th century, presidential wars were geographically limited in scope.
the pentagon envisions a war that will go on for at least 20 more years under the aumf. it's possible it will serve as the basis for president which he will see clinton's kill list in 2033. the droning will continue until morale improves. recently a report from a subdivision of pundit fact evaluated a claim that obama had bombed more countries than george w. bush and they rated it true. they couldn't settle on a precise number. and the report included the intriguing sentence that both presidents may have bombed the
philippines. president obama gave a very strange speech about this, kind of a disorienting speech back in may of 2013 at the national defense university. he quoted james madison's warning that no nation could survive in the midst of continual war fair and he added a warning of his own, that a war will prove the system that would
of the marine barracks in beirut but it was also after the attack on grenada. so these are wars of choice, not a question of whether or not the united states would use force which our national security interests are at risk. but more ambiguous cases. and it's a fascinating document. it's called the use of military force. you can find it easy enough on the internet. i'm not going to read all of the different passages. i'll just highlight a few. the emphasis is actually in the original. this is a focus on combat troops. the first point.
through the years. it turns out we know the military aide at the time was colon powell. he articulated a similar set of rules when he was chairman of the joint chiefs of staff. so these criteria are like them. a few years ago, in my book, the power problem, i borrow liberally from the doctrine and i want to lay those out for you briefly. you'll see clear parallels between the four i lay out. he had six. but there are some similarities. i think there should be an excelling u.s. national security interests at stake. i think there should be strong public support and this should be manifest in a congressional debate and congressional
let's debate that. the second point is public support. is there strong public support. well, it depends. sew the first thing to note is that nearly three out of every four americans favor air strikes against isis. the question is both iraq and syria. john referenced the debate of course that has gone on in other countries has really trieded to
differentiate. but the way this question was asked to this sample of the american people clearly explains this is not just attacks in iraq but are attacks in iraq and syria. so nearly three out of every four americans favor air strikes. but six out of ten oppose the use of u.s. ground troops in iraq and syria. now, it's not really so surprising right. call it what you will. the bitter memories of the wars in afghanistan and especially in iraq, um, it's not so surprising the american people are not particularly enthusiastic about another major ground war in iraq or a new or additional ground war in syria. the one in afghanistan is obviously still going on. so this is where the public is on this question about what
we're doing and how we go about doing it. and so the real question is whether an air only campaign can accomplish what president obama set out to do. has set out to do. so this is the next question, a very clearly defined mission. well, in his speech on september 10th, he suggested that an air only campaign could both degrade and ultimately destroy isil. now, he said it was a come prehencive counterare terrorism strategy but also said and this was was -- got at least as much attention in the media, we will not get dragged into another ground war in iraq. so the president's statements to the american public was that he thought we could degrade and ultimately destroy isil from the air. now, turns out not so fast that just this morning, the
"washington post" is reporting that retired marine general john allen who is president obama's special envoy to coordinate the interagency process effort against the islamic state, general allen has directed that everyone should stop using the word destroy when describing the mission. he said the word was too imprecise. degrade is better. the post says he might also have said it's impossible to do this. but anyway, the president has said destroy. general allen has said let's not use that word. so there's some debate even within the administration. among senior military officers, there is also some debate, disagreement not per se with the president but kind of clarifying what this mission is likely to look like and who is likely to
carry out. i paraphrased a little bit. if the coalition that has been assembled on the ground where our air strikes are assisting, if this fails and there are threats to the united states and certainly we go back to the president and make recommendations that may include the use of ground forces. the following day, the army chief of staff, general odierno emphasized you have to have ground forces capable of going in and rooting out isis but it's clear in the context of remarks said that he wasn't talking acted u.s. ground forces. he was really placing quite a bit of emphasis on the ground forces there, the forces in the region. so there's still a question. if there must be boots on the ground, must they be american boots. and as i say some say not necessarily or at least in the
case of general dempsey, wait and see. on the other hand, others are equally convinced that only u.s. combat troops, u.s. combat troops, only u.s. combat troops, can accomplish the mission and that their need is urgent. it is urgently required now in both iraq and syria not wait and see not wait and see if the forces on the ground there can deal with this problem.
so this is once again a debatable point. the last one is, is this a last resort? and it gets a little bit to what i've already said. is this particular choice these particular wars of choice maybe we should define it by the number of countries that we're bombing. could this be prosecuted from the air in support of others on
and finally i don't think this is a last resort. these sources of criteria are not particularly original and i don't intend them to be. there are criteria criteria in the past that we have used to judge whether or not u.s. combat operations should be engaged and it's incumbent upon congress and the public.
speak to the strategy better than i could but i think the way in which two successive administrations have stretched the post 9/11 aumf does threaten to permanently change the default setting of the united states from peace to war. as i think i alluded to at the end of the speech, as we get further away from three days after september 11th and we have groups that -- of various connections and compositions, varied intentions, we are becoming increasingly divorced from the original legal basis of the war against al quaeda. and i do think it's quite
shocking that this was in 2013, senator levin asked a pentagon official for a list of those associated forces and he was told while he might be provided with a list, the list could not be shared with the public because the forces on the list could -- it could harm national security because just by naming the people we were at war with, for example, are we at war with al shabaab, we don't know. they could gain credibility manging them even more of a threat to the united states.
consult your constitution. it talks about raising an army and maintaining a navy. that actually had real meaning to them. so the fact that the president no longer is required to call up forces is why you don't have declarations of war. you don't have congress debating whether or not particular forces are necessary because they are at his disposal. >> average people when they look at the fact that the people that are going to fight, their
passports are not revoked like edward snowden's passport was revoked. they actually said they're not going to do that. just watch them carefully. is it really a new war or just an extension of this so-called war on terrorism that we're going to be fighting like you said for about 20 years? >> you know, sometimes it makes less sense to talk about wars in plural and maybe we should spend less time coming up with new names for new operations and just speak of war in the singular. this is what's envisioneded to be a 30-years war even though the president has told us that the threat from al quaeda has e re-crete receded significantly.
because we have declared war more on the tactic of terrorism and less on the people that do it, it's an open-ended war truly. so we've seen it in the evolution from al quaeda to isis to organizations that are bitter enemies and yet we're trying and succeeding in treating them effectively in the same way. i wish i had a better answer. it's a good question. i do think there's some evidence that terrorist organizations over time fall apart for various different reasons. some pressure on them is -- can contribute to that collapse. some that are particularly dependent upon strong leaders are defeated or become less relevant as those leaders are limb nated, either killed or jailed, et cetera. so a different strategy is appropriate at different times. sometimes the political context.
sometimes the dispute that a particular terrorist organization is fighting about changes and so their goals change. so i think it is -- it always has been true that we should deal with these more dis-cre - discretely than lumping them all together. >> this is basically a return to arguing what some people call the bush doctrine. for both of you, do you see any categories for the need for whatever you want to call it, you know, a couple of questions here that a pre-emptive war on folks who want to come here and carry out, you know, mass terrorist attacks? >> a good question. i struggle a little bit with
out in my mind is 12, that is a dozen possible, you know, terrorist wannabes coming back to the united states. is it a concern, yes? a grave one? certainly not. so i think just as in the case of -- the one similarity is just when you talk about waging preemptive war against the united states, understanding their capables as well as intentions is just as important when you're talking about non-state actors. so that's where i'd like to see the debate focused. >> i think as a constitutional matter, the president does have some routine authority to act in the absence of congress.
i think in the 21st century, this reserved power, this defensive power on the part of the president to use -- i don't think the president is required when an attack is imminent, i don't think any president would wait until that attack reaches our shores. i don't think he'd run into much trouble constitutionally if there is a case where the use of military force can a -- avert an
attack. what we have is something very different with the way the aumf has been stretched. it has been used to build secret drone bases across the middle east and africa. we have drones everywhere. the -- in foreign services committee, the senate foreign services committee hearing a year and a half ago, an administration official in response to things lindsey graham's questioning, do you have the authority under the aumf to put boots on the ground in the congo and he said yes and i think there's a way in which you have this open-ended authority that nobody has been challenging, it becomes like a
self-licking ice cream cone. it perpetuates itself in order to exist and that's why there are a number of proposals out there. i think the best proposals involve getting rid of the aumf after 13 years. getting rid of the aumf doesn't mean as i said that the president has to sit back and wait until something explodes before any action can be taken. but the war on terrorism is largely if it's done in a smart fashion going to be a law enforcement and intelligence operation and military force where it's appropriate and if it is appropriate in the case of isis, i'm not convinced, but this is the kind of thing that we have a debate in congress
-- who gets it. i don't personally think that's necessary for the reason that, you know, i talked about a minute ago that if new splinter groups not covered by the -- frankly, most of these groups are not covered by the aumf by -- i think in the case of an imminent threat, there's some reserved authority for the president to act unilateral if that's necessary. if there's a group like isis emerges and the claim is we need military force to deal with this group, then we have the debate and authorize that.
>> i'm worried about which forces we're helping, i'm worried about what happens if those forces actually win and whether or not they'll behave as we want them to. there are many reasons to doubt that, that's true. there's reasons to doubt it all the time. there are particular reasons to doubt it in syria. in the case of iraq, so much hinges on the perceived fairness and representativeness of the
>> there's a lot of questions about -- >> there's the argument that the war powers gives the president a free pass for 60 to 90 days. yeah, it's -- president obama is not the first president to make that argument. they made that argument in libya. and after that 60 days, he got the state department to draft an opinion saying that bombing was not the sort of hostilities we envisioned. sure we were dropping bombs on them but we weren't engaged in
run amuck before it's an illegal war. so it's -- you know, it's not a good argument but it is an argument that other presidents have used and some congressional scholars like lewis fisher who feel very strongly that wars should be authorized, it's even said that we should repeal the war powers act because it has this supposed ambiguity that presidents have seized upon. i want just before we close since chris gave credit for the folks who helped him out with his power point, i'd be remiss and maybe in trouble if i didn't mention that my lovely and talented wife prepared my presentation which was technically far beyond my capabilities where everything i prepare looks like a caveman wrote it in the ground with a stick. but that presentation was hers, so thank you, caitlin.
authority. when we joined the u.n., we did not, you know, congress could not, the senate could not have delegated congressional war powers so, you know, that argument may be relevant to the question of international law. it can't give you what you have to get from congress which is domestic legal authorization for military -- for the use of force. >> before we close, just with regard to the war powers resolution question that gene referenced. scott garrett has a bill introduced that would repeal the war powers resolution and hopefully the next time you see a debate on the wisdom of air strikes either in syria or anywhere on c-span, it will involve members of congress. thank you all for coming.